Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Tex.: Producer allegedly misrepresented jewelry maker’s involvement with instructional DVDs, (Dec 1, 2014)

By Jody Coultas, J.D.

A wire jewelry maker and educator stated Lanham Act false advertising and misappropriation of name and likeness claims against a DVD producer for false and misleading statements regarding the jewelry maker’s endorsement of instructional DVDs, the federal district court in Fort Worth has held (Bullard v. Day, November 25, 2014, McBryde, J.).

The jewelry maker entered into two agreements with Home Jewelry Business, LLC and ARB 1521, LLC to star in a set of instructional DVDs. The jewelry maker’s company, Wubbers LLC, agreed to sell certain business assets to Home Jewelry.

After Home Jewelry made a second and third set of DVDS, the jewelry maker asserted claims for breach of contract, misappropriation of name and likeness, false advertising, and false endorsement in violation of the Lanham Act.

Home Jewelry was not entitled to summary judgment of the misappropriation of name and likeness claim, according to the court. The misappropriation claim was based on Home Jewelry’s alleged use of the jewelry maker's "name and likeness in certain marketing emails which are worded and structured to falsely represent that she is advertising and endorsing Defendants' goods and that she is making guarantees about the goods being offered on Defendants' website." Home Jewelry’s website allegedly gave the impression that the jewelry maker endorsed the DVDs, and an email included the jewelry maker’s name. Home Jewelry argued the jewelry maker consented to the use of her name and likeness. Therefore, questions of material fact precluded summary judgment.

The jewelry maker submitted eight statements made by Home Jewelry that were allegedly false or misleading under the Lanham Act. Home Jewelry countered that the statements were mere puffery and, therefore, not actionable under the Lanham Act. The statement that Home Jewelry begged and pleaded with the jewelry maker for her secrets was puffery and not actionable. The jewelry maker provided no evidence regarding the statement that she was in a partnership with the managing member of Home Jewelry and ARB 1521 or the companies. Also, the jewelry maker never entered the allegedly false "Your Order is Pending" email into the record. Therefore, the claims based on these three statements were dismissed.

However, Home Jewelry failed to show that there were not genuine issues of fact regarding five other statements that were allegedly false and misleading in violation of the Lanham Act, according to the court. The statements at issue implied that the jewelry maker was contending consumers could become expert jewelry makers after viewing the DVDs, that the jewelry maker made guarantees about the DVDs, that the best jewelry artists use only a handful of combination techniques to make hundreds of different designs, that the DVDs provided secret methods, and that he DVDs were offered by the jewelry maker.

The case is No. 4:14-CV-604-A.

Attorneys: Vincent J. Allen (Carstens & Cahoon) for Patricia Bullard, and Wubbers, LLC. Clayton R. Hearn (Roberts Markel Weinberg Butler Hailey PC) for Alec Day, Home Jewelry Business, LLC, and ARB 1521, LLC.

Companies: Home Jewelry Business, LLC; ARB 1521, LLC; Wubbers, LLC

Cases: Advertising TexasNews